Pregnant and Detained: Constitutional Rights and Remedies for Pregnant Detainees

Natalie Avery Barnaby | May 3, 2021

Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.

There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration detention facilities. This is particularly troubling for pregnant immigrant women who find themselves in immigration detention. Indeed, the U.S. Immigration and Customs Enforcement’s own medical records show that from 2017 to 2018, eighteen women miscarried while in that agency’s custody, a nearly 100% increase from the prior year. Other reports detail how pregnant women are shackled around their stomachs while in transit and describe serious delays when experiencing health emergencies and denial of routine medical care.

Holding pregnant women in detention comes at a high cost. Not only do pregnant women experience emotional and mental stress while in detention, but the risk of miscarrying or other harm to their fetuses increases. Because pregnant detainees have no alternatives for care, detention facilities are constitutionally required to provide them with adequate healthcare. However, for many immigrants this constitutional guarantee bestows a right with no mechanism for enforcement.

In order to address claims of inadequate medical care while in immigration detention, courts have incorporated the deliberate indifference standard from Eighth Amendment jurisprudence into the immigration detention context through the Fifth and Fourteenth Amendments, legally treating immigrants in detention the same as pretrial detainees. This opens the door for pregnant and detained women to bring a cognizable constitutional claim; but to be successful under this standard, pregnant detainees must meet the high bar of proving that they were harmed by an officer’s deliberate indifference to their health. This Comment explores the standard that pregnant immigrant women must meet to show they have suffered a constitutional injury, the remedies that are available, and the significant challenges that arise in pursuing their claims.